The FCC todayfroze all applications for TV channel 51 by both applicants for full-power and low power facilities. Channel 51 is immediately adjacent to the parts of the television bands that were reclaimed for wireless uses during the DTV transition. Wireless users, including CTIA and the Rural Cellular Association, have sought to restrict use of Channel 51 because of the potential for interference to the wireless users in these new wireless frequencies. Today’s order not only freezes new applications for Channel 51 by both full-power and low power TV stations (including LPTV, TV translator and Class A TV stations), but it also freezes the processing of pending applications for the channel. At the same time, the FCC has taken steps to encourage existing users of the channel to vacate it, giving low power applicants 60 days to amend pending applications to specify lower channels.

The freeze on applications is supposedly temporary, while the FCC considers a proposal for a rulemaking to permanently clear Channel 51 of TV users to eliminate the alleged interference to wireless users. But, given the action here, and the FCC’s other actions to clear portions of the TV spectrum for wireless users, it certainly looks like the FCC is predisposed to adopting the proposal of the wireless users to clear this channel. The freeze affects proposals not only for new channels on this band, but also applications for increases in the facilities of stations already in the band so as to preserve the "status quo." The FCC will consider waivers of the freeze, but only to replace existing facilities with new ones where the existing facilities need to be replaced or changed due damage by storm, zoning proceedings, or "unforeseen events." Any new facilities must keep the station within its current coverage area. No waivers of this requirement will be issued to low power stations – while full-power stations may be able to exceed their current contours only through a waiver request that demonstrates that some expansion is necessary to preserve existing coverage or the quality of service to the public.

Any lower power applicant for Channel 51, including LPTV, TV translator and Class A stations, will have 60 days to amend their applications to specify a lower channel. While the FCC has not yet determined whether all applications that are not amended will be dismissed, it would seem prudent to seek to find a new channel if an application is pending on Channel 51. This may affect low power stations seeking to find digital channels in the core band which must be done in September by those stations remaining on Channels 52-69. These stations must clear the band already reclaimed for wireless users by the end of this year, according to the FCC’s Order on the digital transition of translators and LPTV stations (see our summary here).

The FCC has also stated that it will lift the current freeze on full power TV stations seeking to change channels (see our summary of the freeze here) if such stations are seeking to vacate Channel 51 "pursuant to a voluntary relocation agreement," presumably an agreement with a wireless user to change channels of the TV station to eliminate interference issues.

The FCC has a long-held general presumption that existing users of spectrum are protected against newcomers to the spectrum, and that such newcomers accept the spectrum that they get subject to interference that may exist from existing users. Obviously, where there is a change in policy, that presumption can be changed. Here, the FCC has not yet said that wireless users can in any way pre-empt existing users of Channel 51, some of whom have been on the channel for longer than the wireless users (who have only received use of this channel as part of the digital television transition process). Today’s actions only make sure that there are no new users, and no new potential for increased interference. But, with the actions taken today, Channel 51 users may want to consider their long-term prospects on this channel. It looks like this is one more step in the FCC’s efforts to shrink the TV band (see our recent article on those issues here). Channel 51 TV users be warned.

About David Oxenford

David Oxenford represents broadcasting and digital media companies in connection with
regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years. Continue Reading

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David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.